No appearance for the North Atlantic Treaty Organisation
(NATO)
Ms. Colleen Swords, Ms. Janet Henchey, Mr. John
Currie and Mr. Masud Husain for
Canada
No appearance for Iceland
No appearance for Luxembourg
Mr. Dominic Raab for the United Kingdom
Mr. Clifton Johnson, Ms. Heather Schildge and
Mr. Omar Nazif for the United States of America

Application

1. This Trial Chamber is seized of “General Ojdanic’s
Second Application for Orders to NATO and States for
Production of Information” (“Second Application”),
filed by Dragoljub Ojdanic (“Applicant”) on 27 June
2005. The Second Application initially sought binding
orders for the production of documents from NATO and
eleven States (Belgium, Canada, Czech Republic, France,
Germany, Hungary, Iceland, Luxembourg, Poland, the
United Kingdom and the United States of America) pursuant
to Article 29 of the Statute of the International
Tribunal (“Statute”) and Rules 54 and 54
bis of the Rules of Procedure and Evidence (“Rules”).
The Applicant requests :

(A) Copies of all recordings, summaries, notes
or text of any intercepted communications (electronic, oral, or written)
during the period 1 January
1999 and 20 June 1999 in which General Dragoljub Ojdanic
was a party and which:

(1) General Ojdanic participated in the communication
from Belgrade, Federal Republic of Yugoslavia;

(2) the communication was with one of the persons
listed in
Attachment ‘A’ [a list of 23 people attached to
the Second Application];

(3) may be relevant to one of the following issues
in the case:

(a) General Ojdanic’s knowledge or participation
in the
intended or actual deportation of Albanians
from Kosovo or lack thereof;

(b) General Ojdanic’s knowledge or participation
in the intended or actual killing of civilians
in Kosovo or lack thereof;

(c) whether the formal chain of command on matters
pertaining to Kosovo was respected within the
FRY or Serbian government;

(d) General Ojdanic’s efforts to prevent and
punish war crimes in Kosovo or lack thereof.

(B) Copies of all recordings, summaries, notes or text
of any intercepted communications
(electronic, oral, or written) during the period
1 January 1999 and 20 June
1999 in which General Dragoljub Ojdanic was mentioned
or referred to by name in the conversation and which:

(1) took place in whole or in part in the Federal Republic
of Yugoslavia;

(2) at least one party to the conversation held a position
in the government, armed forces, or police in the
Federal Republic of Yugoslavia or the Republic of
Serbia ;

(3) may be relevant to one of the following issues
in the case:

(a) General Ojdanic’s knowledge or participation
(or lack thereof) in the intended or actual
deportation of Albanians from Kosov;

(b) General Ojdanic’s knowledge or participation
(or lack thereof) in the intended or actual
killing of civilians in Kosovo;

(c) whether the formal chain of command on matters
pertaining to Kosovo was respected within the FRY
or Serbian government;

(d) General Ojdanic’s efforts to prevent and
punish war crimes in Kosovo.

(C) Copies of the following documents:

(1) Any reports, evaluations, or comments concerning
the speech given by General Ojdanic to the military
attaches of foreign governments in Belgrade during
July- August 1998.

(2) Any reports, evaluations, or comments of
NATO General Wesley Clark concerning his contacts
with General Ojdanic from November 1998 to December
1999, his assessment of General Ojdanic’s attitude,
position, and competence, or his evaluation of
whether the formal chain of command on matters
pertaining to Kosovo was respected within the FRY
or Serbian government.

(3) Any information received from or provided by General
Momcilo Perisic pertaining to General Ojdanic from
November 28, 1998 to the present.1

Background

2. This application is the culmination of a lengthy
procedure. Following the filing of “General Ojdanic’s
Application for Orders to NATO and States for Production
of Information,” dated 13 November 2002 (“First
Application”),
the subsequent responses from some of the States,
an indefinite stay of the proceedings,2
further submissions from the Applicant3
and an oral hearing that took place on 1 and 2 December
2004, the Trial Chamber issued a Decision on 23 March
2005.4
That decision ordered the Applicant to reformulate
his request for documents with respect to certain
States and to give those States a further opportunity
to respond voluntarily.

3. On 19 April 2005, the Trial Chamber received notification
of the Applicant’s reformulated
request,5 which
was sent to the twelve remaining States6 and
NATO. That request sought production of the desired
documents within 60 days of service of the request.
The Applicant subsequently filed, on 27 June 2005,
the Second Application at issue here.

4. At a Status Conference on 25 August 2005, the Applicant
requested - and Judge Bonomy , as pre-trial judge,
agreed - that the Trial Chamber take no further action
on the Second Application until the Applicant notified
the Trial Chamber of the outcome of ongoing discussions
with certain States.

5. On 6 September 2005, the Applicant filed “General
Ojdanic’s
Report on Status of Second Application to NATO and
States for Production of Information (Rule 54
bis),” notifying the Trial Chamber of the responses
received from the States concerned and requesting
that the Trial Chamber, inter alia, schedule
an oral hearing on the Second Application. The hearing
was scheduled for and occurred on 4 October 2005.
By then, the Second Application had been restricted
to five States - Canada, Iceland, Luxembourg, the
United Kingdom and the United States of America -
and NATO. In addition, the Applicant had restricted
his application in relation to the United Kingdom
to paragraphs (C)(2) and (C)(3).7

Submissions

6. Iceland and Luxembourg neither submitted responses
nor appeared at the hearing. Canada, the United
Kingdom and the United States of America all responded
to the Reformulated Request, filed written submissions
prior to attending the hearing and made oral submissions
at the hearing.

7. Canada argues that the Second Application should
be dismissed as premature on account of what Canada
characterizes as the Applicant’s unilateral termination
of communications that might have led to the voluntary
production of certain requested documents.8
In the alternative, Canada asks that the Second Application
be dismissed on account of its failure to satisfy
Rule 54 bis(A)’s requirements of specificity
and relevance. In particular, Canada contends that
paragraphs (A) and (B) of the Second Application “fail
to identify specific documents” and “fail[…] to explain
how the requested information is relevant... [or]
necessary to a fair determination of ”9 the
matters at issue. Likewise, paragraph (C) is said to
generally lack the requisite relevance and necessity,
that paragraph (C)(2) is an entirely new request rather
than a reformulated one and that paragraph (C)(3) is
overly broad. Canada adds that the Second Application’s
vagueness makes it impossible to assess the national
security implications of complying with the request,
and that the request is especially troubling if it
seeks information regarding Canada’s data-collection
capabilities.10 If
the Trial Chamber does not dismiss the Second Application,
Canada asks that the Applicant be ordered to further
reformulate his request and continue his efforts to
secure Canada’s voluntary cooperation.

8.
The United Kingdom argues that paragraphs (C)(2) and
(C)(3) of the Second Application are new requests
rather than reformulations. As to paragraph (C)(2),
the UK says that it is too broad, in that it seeks
information from outside the indictment period,
and too unspecific, in that it fails to identify
particular contacts between the Applicant and General
Clark.11 The
UK applies its criticisms of (C)(2) to paragraph
(C)(3), noting in particular (C )(3)’s extremely
broad request of “SaCny information received from
or provided by General Momcilo Perisic pertaining
to General Ojdanic from November 28, 1998 to the
present.” This request, adds the UK, fails to suggest
how the information sought is relevant or necessary
to trial, which is a failure shared by (C)(2)’s request
of material containing General Clark’s “assessment
of General Ojdanic’s attitude
, position, and competence.” Aside from these objections,
the UK questions why it - rather than Generals Clark,
Perisic or their respective States - is being asked
for information originating from the two men. Finally,
the UK says, like Canada , that the Applicant has failed
to reasonably seek its voluntary cooperation.12
Accordingly, the UK asks that the Second Application
be dismissed.

9.
The United States of America (“USA”) makes arguments
that largely mirror those of Canada and the United
Kingdom: that the Applicant failed to take reasonable
steps to obtain the USA’s voluntary cooperation by,
among other things, declining the USA’s offer to make
information available pursuant to Rule 70,13 and
that the Second Application fails to demonstrate the
specificity, relevance and necessity that Rule 54 bis requires.
Paragraphs (A) and (B), for example , fail to identify
any specific dates or conversations, and are too broad
in seeking communications spanning six months involving
any of some 23 people. The USA also asserts that paragraph
(C) of the Second Application is a new rather than
reformulated request, and that complying with the Second
Application would implicate national security concerns,
especially if the information sought turns on the USA’s data-
collection methods. Finally, the USA says that, in
any event, it does not possess any “exculpatory information”14 regarding
the events described in paragraphs (A)(3) and (B)(3)
of the Second Application. Accordingly, the USA asks
that the Second Application be dismissed.

10.
NATO submitted a letter dated 3 October 2005, which
concerned only paragraph (C)( 2) of the Second Application.
The letter states that “the revised request, set
out in the Second Application, still lacks adequate
specificity or an explanation of the relevance and
necessity of the information sought to trial issues.” NATO
contends that, in an effort to be cooperative, it
has examined its archives and can confirm that it
does not possess the information sought under paragraph
(C)( 2) of the Second Application, “which at least
had some evident connection with NATO.” NATO asserts
that it has no independent intelligence gathering
capacity, and thus that any other aspect of the
Second Application should properly be addressed
to Member States of the Alliance. As for NATO’s absence
from the 4 October 2005 hearing, NATO says that
it should not be taken as an acceptance of the requests
made in the Second Application.

11.
The Applicant argues that, with regard to paragraph
(A) of the Second Application , he has identified
the place and dates of the information he seeks to
the best of his ability. The Applicant says that
he was in Belgrade for almost the entire duration
of the specified dates, and that his near-daily conversations
with Slobodan Milosevic and others preclude his
limiting the dates of his request any further.15 The
Applicant also says that he has narrowed paragraph
(A) by seeking communications between himself and
only 23 other specified people, and that asking for
only “intercepted
communications” is a narrower request than one for
any communications that a State might possess in any
form.

12. As for paragraph (B), the Applicant maintains that
it is sufficiently specific and relevant because
it is limited to conversations in which one of the
parties was a member of the government, armed forces
or police of Yugoslavia or Serbia, and that the
request seeks information limited to the Applicant’s
efforts to advance or prevent war crimes in Kosovo.16

13. The Applicant also contends that, because information
falling within the specific parameters of paragraphs
(A) and (B), as revised, bears on the core allegations
against him - such as, for example, whether he planned,
ordered or otherwise aided and abetted the killing
of civilians - the information is necessary to fairly
determine the matters that will be at issue at trial.

14. The Applicant acknowledges that paragraph (C)(1)
is a new request, but asserts that he has the right
to make new requests and that the information (C)(1)
seeks bears on his credibility.17 As
for paragraph (C)(2), the Applicant argues that
General Clark’s assessment
of him will be relevant to trial,18 just
as he asserts that , as regards (C)(3), information
from General Perisic will be relevant to determining
the Applicant’s involvement
or lack thereof, for example, in expelling Albanians
from Kosovo.19

15. In sum, the Applicant argues that his Second Application
satisfies the requirements of Rule 54 bis and
that, given the breadth of the binding orders issued
to Serbia and Montenegro by this Trial Chamber in
the Milosevic case,20
it is only fair that the comparatively precise request
be granted here.

16. As for the various States’ offers to make information
available to the Applicant pursuant to Rule 70, the
Applicant says that he must decline because accepting
material under that provision presupposes that the
States will retain control over the use of the material
at trial.21

Law

17. Article 29 of the Statute and the jurisprudence
of the International Tribunal oblige States to “co-operate
with the International Tribunal in the investigation
and prosecution of persons accused of committing
serious violations of international humanitarian
law.”22 This
obligation includes the specific duty to “comply
without undue delay with any request for assistance
or an order issued by a Trial Chamber [for]...
the service of documents.”23

18. A party seeking an order that a State produce documents
or information must, pursuant to Rule 54 bis(A), “(i)
identify as far as possible the documents or information
to which the application relates; (ii) indicate
how they are relevant to any matter in issue before
the Judge or Trial Chamber and necessary for a fair
determination of that matter; and (iii) explain
the steps that have been taken by the applicant
to secure the State’s assistance.”24

19. The Appeals Chamber has described the general requirements
for obtaining an order issued pursuant to Article
29 of the Statute. The Chamber has explained, for
example, that although the request for such an order “must
identify specific documents and not broad categories,”25 “[t]he
requirement of specificity... does not... prohibit
the use of categories as such.”26 The
Appeals Chamber has also instructed that a request
for a binding order must “set out succinctly the
reasons why such documents are deemed relevant to
the trial,”27
and that it is for the Trial Chamber alone to determine,
within its discretion, whether the documents sought
are relevant: “the State from whom the documents are
requested does not have locus standing to challenge
their relevance.”28
In addition to the specificity and relevance that an
applicant must plead, the Appeals Chamber has noted
that “a State shall be given sufficient time for compliance
with a binding order.”29 To
these general points, which the jurisprudence of the
International Tribunal supported even before Rule 54 bis was
adopted,30
Rule 54 bis(A) added two more requirements:
first, that the applicant indicate how the information
sought is “necessary for a fair determination” of a
matter at issue,31 and
second, that the applicant
“explain the steps that have been taken... to secure
the State’s assistance.”32

Paragraph (A) of the Second Application – Intercepted
Communications in which the Applicant was a Participant

20. The Trial Chamber considers that, in this paragraph
of his request, the Applicant has identified as
far as possible the specific documents sought, in
that (a) the request is temporally circumscribed,
(b) the Applicant is seeking only those communications
in which he participated while he was in Belgrade
and (c) the Applicant has narrowed his request to
communications that involved, besides himself, any
of the 23 people listed in Annex “A” of the Second
Application. The Trial Chamber’s Decision of
23 March 2005 ordered the Applicant to “stipulate as
far as possible the place and dates of intercepted
communications that relate to matters which are the
subject of the Indictment.”33 The
Applicant can recall the dates of some of the conversations
he had with some of the 23 people , such as General
Wesley Clark, and he has stated that he spoke to Slobodan
Milosevic and with his subordinates during the period
stated on an almost daily basis. Given the lapse of
time, the Trial Chamber accepts that the Applicant
cannot be more precise than this and so has restricted
the request to one that is reasonable in light of
all the circumstances;

21. In the opinion of the Trial Chamber, the Applicant
has identified what are plainly four important issues
in the case, and seeks the specified documents only
insofar as they may relate to these issues. In view
of the significance of these issues , it is, on the
face of it, necessary for a fair determination of
the case that any material bearing on them should
be available to the Applicant. None of the States
is claiming that the request in paragraph (A) is
unduly onerous. Further, Canada has been able to
search its records and has found material potentially
responsive to the request in paragraph (A) of the
Second Application.34
The United Kingdom and the United States have also
been able to search their records, although they have
stated that no material responsive to paragraph (A)
was found.35

22. The Trial Chamber finds that the steps taken by
the Applicant to secure the assistance of States
in order to obtain the documents are reasonable under
the circumstances. Canada says that it is willing
to provide the potentially relevant material it
has discovered, but only pursuant to Rule 70.36
The USA also states that it will voluntarily provide
certain material pursuant to Rule 70.37 The
Applicant argues that he should not be required to
accept information that the States are empowered to
prevent from being disclosed at trial, and the Trial
Chamber agrees. Where the material is relevant to
and necessary for a fair determination of the issues
at trial, an applicant is entitled to seek an order
pursuant to Rule 54 bis
rather than be dependent on the willingness of a State
to agree to the use at trial of material over which
it has the final say under Rule 70.

23. It should be noted that, although the Applicant
at some point accepted the USA’s
offer to view certain material pursuant to Rule 70,
the USA limited its search in relation to paragraph
(A) to exculpatory material, thereby failing to satisfy
the Applicant’s request in its entirety. A State
cannot arrogate to itself the right to limit the
request of an applicant to material that it considers
to be favourable to the Applicant’s case. If a
specific request is made for the production of material
relevant to an issue in the case, then the primary
obligation of a State is to co -operate with the
Applicant by searching for any material falling within
the terms of the Request. It is for the Applicant
to determine which documents, if any, of those produced
should be used in his case.

24. In sum, paragraph (A) of the Second Application
meets the requirements of Rule 54
bis, and the Applicant cannot be said to have
failed to take reasonable steps to secure voluntary
cooperation by his refusal to accept the States’ conditional
offers.

Paragraph (B) of the Second Application – Intercepted
Communications in which the Applicant was Mentioned
or Referred to by Name

25. The Applicant has now limited this paragraph of
the Application to those conversations , during a
period of less than six months, in which at least
one party to the conversation held a position in
government, armed forces or police of the Federal
Republic of Yugoslavia or Serbia, as the Applicant
considered that these persons would be more likely
to have relevant, useful information about the Applicant’s
activities and state of mind relating to Kosovo.
The Trial Chamber is of the opinion that paragraph
(B) of the Second Application is specific enough
to meet the requirements of Rule 54 bis.
It is confined to the most significant period covered
by the Indictment.38 It
is also confined to material that may relate to
any one of four very important issues in the case.
How others perceived the activities and state of
knowledge of the Applicant at that time is of particular
relevance to a proper judicial determination now
of these matters. Any material falling within paragraph
(B) should be available to the Applicant if a fair
determination of these issues at trial is to be ensured.

26. For the reasons given in relation to paragraph
(A), the Trial Chamber considers that the Applicant
has fulfilled his obligation to endeavour to secure
the voluntary provision of the material. The Applicant
has thus met the requirements of Rule 54 bis.

Paragraph (C) of the Second Application

27. The States’ objection, that parts of this paragraph
amount to a new request, does not prevent this Chamber
from considering the request. In the opinion of the
Trial Chamber this paragraph can be properly described
as a reformulation of paragraph (C) of the original
Request. In any event, an applicant may make an application
for different documents. Nevertheless, the Trial Chamber
is of the opinion that no part of (C) satisfies the
requirements of Rule 54 bis.

28. Regarding paragraph (C)(1), which concerns “any
reports, evaluations or comments concerning the speech
given by the Applicant to the military attachés of
foreign governments in Belgrade during July – August
1998”,
the Trial Chamber notes that the Applicant has a
copy of the speech and can produce it in evidence
at trial. In addition, the Applicant has failed to
show that the evaluation and comments of others on
his speech would be relevant to any issue at the trial.
It is for the Trial Chamber to evaluate the speech
itself in the context in which it was delivered.

29. As regards (C)(2), which seeks information from
NATO General Wesley Clark, the Trial Chamber considers
that the appropriate way for the Applicant to try
to obtain the information in the first place is
to approach General Wesley Clark. The Trial Chamber
also finds that paragraph (C)(2) lacks basic clarity
and fails to demonstrate that the material sought
is necessary to fairly determine an issue at trial.

30. In relation to paragraph (C)(3), which concerns
any information received from or provided by General
Momcilo Perisic pertaining to the Applicant from
November 1998 to the present, the Applicant has
not endeavoured to obtain the information from General
Perisic and, in any event, has failed to show how
information “pertaining
to General Ojdanic from November 28, 1998 to the present” given
by General Perisic to NATO or any of the States involved
would be relevant to any issue at the trial.

National security interest objections

31. The Appeals Chamber has cautioned that if States
were able to “unilaterally assert
national security claims and refuse to surrender those
documents,” it could jeopardise
“the very function of the International Tribunal, and ‘defeat
its essential object and purpose’” because documents
requested could be vital to determine the guilt or
innocence of an accused.39 The
Appeals Chamber has also been cognizant, however,
of “legitimate
State concerns related to national security,”40 and
there are procedures to follow when a Trial Chamber
considers a State’s national
-security objection to the production of documents.

32. Rule 54 bis of the Rules provides, in relevant
part, that:

(F) The State, if it raises an objection pursuant to
paragraph (D), on the grounds that disclosure would
prejudice its national security interests, shall
file a notice of objection not less than five days
before the date fixed for the hearing, specifying
the grounds of objection. In its notice of objection
the State:

(i) shall identify, as far as possible, the basis upon
which it claims that its national security interests
will be prejudiced; and

(ii) may request the Judge or Trial Chamber to direct
that appropriate protective measures be made for
the hearing of the objection, including in particular:

(a) hearing the objection in camera and ex parte;

(b) allowing documents to be submitted in redacted
form, accompanied by an affidavit signed by a senior
State official explaining the reasons for the redaction;

(c) ordering that no transcripts be made of the hearing
and that documents not further required by the Tribunal
be returned directly to the State without being filed
with the Registry or otherwise retained.

(G) With regard to the procedure under paragraph (F)
above, the Judge or Trial Chamber may order the
following protective measures for the hearing of
the objection:

(i) the designation of a single Judge from a Chamber
to examine the documents or hear submissions; and/or

(ii) that the State be allowed to provide its own
interpreters for the hearing and its own translations
of sensitive documents.

* * *

(I) An order under this Rule may provide for the documents
or information in question to be produced by the
State under appropriate arrangements to protect its
interests, which may include those arrangements
specified in paragraphs (F)(ii) or (G).

The Trial Chamber considers that these provisions,
which on their face relate to applications determined
by a Trial Chamber without hearing the State concerned,
can for sound, pragmatic reasons be applied in a
case where the State has been heard but cannot clearly
identify the particular national security interest
in need of protection until it knows what documents
the Trial Chamber may order it to produce. The Trial
Chamber considers that to be the situation here.
Now that the documents which the Trial Chamber considers
should be produced have been identified, the States
are much better placed to consider whether any national
security interest is implicated and to explain clearly
how that arises.

33.
In their submissions, Canada, the UK and the USA have
raised concerns on grounds of national security
interests. Canada maintains that it is difficult
to assess whether such interests are engaged and
also that the wording seems to target information
received or obtained from a particular investigative
technique, such as “intercepted
communications.”41 The
US argues that production may reveal the nature and
extent of its intelligence-gathering capabilities
as well as where and how they might be directed.42

34. The Applicant has no interest in the techniques
the States use to gather information , but only wants
the information relevant to his request that they
possess. A State that is subject to a binding order
is free to request protective measures in relation
to specific documents pursuant to the procedures
of Rule 54 bis, or to seek
other appropriate relief. The operative effect of
the order made here will be suspended for 21 days
to allow any State to make a motion for protective
measures or other appropriate relief.

NATO

35. Having confirmed that it does not possess any information
contained in paragraph (C)(2) of the Second Application,
NATO asserts that it has no independent intelligence
-gathering capacity and that the request should properly
be addressed to member States of the Alliance. This
argument essentially asserts that a “non-originating
” State or holder of material is not obliged under
Article 29 of the Statute to produce documents or
information that it received from an “originating” State,
and that “ownership” rather than “possession” triggers
the obligation to produce, or that intelligence-sharing
agreements with States trump any obligation under Article
29 of the Statute.

36. The Trial Chamber has previously held that the
obligation in Article 29 of the Statute applies not
only to States but also to international organisations.43
In the Simic case, this Trial Chamber issued
a subpoena ad testificandum
to General Shinseki of SFOR pursuant to paragraph
50 of the Blaskic Subpoena
Decision, which provides for the issuance of subpoenas
directly to State officials performing their official
functions as members of international peace-keeping
or peace-enforcement forces.44 This
Chamber further ordered all of the States participating
in SFOR to produce documents to the Defence, and noted
that (1) the States were obliged by paragraph 4 of
Security Council Resolution 827 to cooperate fully
with the International Tribunal, and that (2) pursuant
to Article 103 of the Charter of the United Nations,
in the event of any conflict between a State’s obligations
to NATO and SFOR and its obligations under the Charter,
its obligations under the latter prevail.

37. In light of the above-mentioned jurisprudence,
the Trial Chamber considers that it is empowered
to issue an Order against NATO.

38. The target of such an Order is material that the
organisation possesses. Questions of ownership and
whether the material was initially obtained by another
are irrelevant. As the Appeals Chamber explained
in the Blaskic Subpoena
Decision, “the
obligation under consideration [that of Article 29]
concerns [inter alia]
action that States may take only and exclusively through
their organs (this, for instance, happens in case
of an order enjoining a State to produce documents
in the possession of one of its officials).”45
This applies equally to material received by one State
from another. Of course, should a third-party holder
of sensitive material assert that its legitimate security
interests would be adversely affected by an order
for production, it may seek appropriate protective
measures.46

Disposition

For the reasons above, pursuant to Article 29 of the
Statute and Rules 54 and 54
bis of the Rules, the Second Application is
hereby partially GRANTED
and the Trial Chamber ORDERS as follows:

(1) The requests in paragraphs (A) and (B) of the Second
Application are GRANTED.
Canada, Iceland, Luxembourg, the United States
and NATO shall produce to the Applicant the requested
documents. The operative effect of this order is suspended
for 21 days to give any appropriate State or international
organisation an opportunity to request protective
measures. If no such measures are requested within
21 days , this order shall take immediate effect.

(2) With respect to the United Kingdom, the Applicant
has accepted that it has complied with the requests
contained in paragraphs (A) and (B) of the Second
Application. Those paragraphs are therefore DISMISSED with
respect to the United Kingdom.

Paragraph (C) is DENIED in its entirety with
regard to Canada, Iceland, Luxembourg , the United
Kingdom, the United States and NATO.

Done in English and French, the
English text being authoritative.

________________________
Judge
Patrick Robinson
Presiding

Dated this seventeenth day of November 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 -
General Ojdanic’s Second Application
for Orders to NATO and States for Production of Information,
27 June 2005, para. 2 (emphasis in original). 2 - The
stay, ordered on 14 November 2003, was “until further
notice.” Prosecutor v. Milutinovic, Ojdanic and
Sainovic,
Case No. IT-99-37-PT, Order Staying Rule 54 bis Proceedings,
14 November 2003, p. 2.
3 - See Reply Memorandum:
General Ojdanic’s Application for
Orders to NATO and States for Production of Information,
7 March 2003; General Ojdanic’s Further Submission
in support of Application for Orders to NATO and States
for Production of Information, 20 June 2003. 4 - See Decision on Application
of Dragoljub Ojdanic for Binding Orders pursuant to
Rule 54 bis, 23 March 2005, (“Decision
of 23 March 2005”), p. 7 (“the Applicant may reformulate
paragraphs (A), (B) and (C) of the Request in appropriate
terms by, for example as regards paragraphs (A) and
(B), identifying the particular matters in issue in
the case to which the documents sought are said to
be relevant, and indicating how they are relevant to
these matters, stipulating as far as possible the place
and dates of intercepted communications that relate
to matters which are the subject of the Indictment;
and, for example as regards paragraph (C), identifying
specifically the documents sought and how such documents
relate to the matters in issue in the case.”). 5 - See General Ojdanic’s
Ex Parte Request to NATO and States Pursuant to Trial
Chamber’s Decision of 23 March 2005,
19 April 2005. 6 - Those
States were Belgium, Canada, the Czech Republic, France,
Germany, Hungary, Iceland, Luxembourg, the Netherlands,
Poland, the United Kingdom and the United States of
America.
7 - See Hearing, 4 October
2005, T. 119; Response of the Government of the United
Kingdom to General Ojdanic’s Second Application
for Orders to NATO and States for Production of Information,
27 September 2005, Annex A; Hearing, 4 October 2005,
T. 100. 8 - Rule
54 bis (A)(iii) and Rule 54 bis (B)(ii) require that
the applicant demonstrate that he has first pursued
voluntary measures to acquire the desired information,
and in Prosecutor v. Blaskic, the Appeals Chamber held
that mandatory orders should be sought against States
only when they decline to co-operate voluntarily. See
Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A
R108 bis, Judgement on the Request of the Republic
of Croatia for Review of Trial Chamber II of 18 July
1997, 29 October 1997 (“Blaskic Subpoena Decision”),
para. 31. Canada states that, “without confirming or
denying the existence of intercepted communications,
certain Canadian documents potentially responsive to
the substance of paragraphs A and B of the reformulated
request ha[ve]... been identified.” Written Response
and Notice of Objection of the Government of Canada
to General Ojdanic’s Second Application for Orders
to NATO and States for Production of Information, 27
September 2005, para. 9. Canada offered to produce
certain excerpts of these documents, provided that
they be protected from disclosure at trial, absent
Canada’s consent, pursuant to Rule 70. The Applicant
declined this offer and very shortly thereafter filed
the Second Application, which Canada took as an act
of “abandoning attempts at cooperation.” Ibid.,
para 12. Additionally, at the 4 October 2005 hearing,
Canada indicated that it had found material responsive
to paragraph (C)(1) of the Second Application that
it was willing to share pursuant to Rule 70, but that
the Applicant’s refusal to discuss Rule 70 had precluded
Canada from conveying this offer. See Hearing, 4 October
2005, T. 107.
9 - Written
Response and Notice of Objection of the Government
of Canada to General Ojdanic’s Second Application for
Orders to NATO and States for Production of Information,
27 September 2005, para. 26. 10 - Canada
indicated at the 4 October 2005 hearing that it was
particularly concerned that the Applicant might be
seeking information on the means of Canada’s information-gathering
capabilities, rather than seeking the content of the
desired information. See Hearing, 4 October 2005, T.
114.
11 - See Hearing, 4 October
2005, T. 117-118.
12 - See Response of the
Government of the United Kingdom to General Ojdanic’s
Second Application for Orders to NATO and States for
Production of Information, 27 September 2005, paras.
23-25. 13 - The
USA maintains that it offered to disclose - like Canada
as described in supra note 8 - certain information
to the Applicant on the condition that the USA have
the option of protecting the information from disclosure
at trial pursuant to Rule 70. The Applicant declined
this request and subsequently filed the Second Application.
14 - Although
the USA restricts its assertion on this point to exculpatory
evidence, the Second Application contains no such restriction.
15 - See Hearing, 4 October
2005, T. 92.
16 - See
ibid., T. 93.17 - See
ibid., T. 95 – 96.18 - See
ibid., T. 97 – 98.19 - See
ibid., T. 98.20 - See
Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T,
see e.g., Decision in part on Prosecution Motion for
Orders pursuant to Rule 54bis against Serbia and Montenegro,
5 June 2003; Second Decision on Prosecution Motion
for Orders pursuant to Rule 54bis against Serbia and
Montenegro, 12 June 2003; Thirteenth Decision on Applications
pursuant to Rule 54bis of Prosecution and Serbia and
Montenegro, 17 December 2003.
21 - See Hearing, 4 October
2005, T. 100.
22 - Article
29(1). See also Prosecutor v. Tihomir Blaskic,
Case No. IT-95-14-A R108 bis, Judgement on the Request
of the Republic of Croatia for Review of Trial Chamber
II of 18 July 1997, 29 October 1997 (“Blaskic Subpoena
Decision”), para. 26 (“The exceptional legal basis
of Article 29 accounts for the novel and indeed unique
power granted to the International Tribunal to issue
orders to sovereign States (under customary international
law, States, as a matter of principle, cannot be ‘ordered’ either
by other States or by international bodies)”.). 23 - Article
29(2)(c).24 - Rule
54 bis(A).25 - Blaskic Subpoena Decision,
para. 32 (notes omitted). See Prosecutor v. Blaskic,
Case No. IT-95-14-T, Order to the Republic of Croatia
for the Production of Documents, 21 July 1998, Opinion
of Judge Mohamed Shahabuddeen, p. 12 (“[P]rovided that
a category is defined with sufficient clarity to permit
ready identification of its members and that it is
not so broad as to be oppressive, a State may be ordered
to say whether it has any documents within the category
even if particulars of each document are not given,
and, if it has, to produce them either to a party or
to the Chamber, barring valid considerations of State
security.”). 26 - Prosecutor
v. Dario Kordic & Mario Cerkez, Decision on the Request
of the Republic of Croatia for Review of a Binding
Order, Case No. IT-95-14/2-AR108 bis, 9 September
1999 (“Kordic”), para. 38. 27 - Blaskic Subpoena Decision,
para. 32.
28 - Kordic,
Decision on the Request of the Republic of Croatia
for Review of a Binding Order, para. 40. In that case,
the Appeals Chamber, having found that the criterion
of specificity had been met, also rejected the State
argument that the Trial Chamber, because of lack of
specificity, was unable to accurately determine the
relevance of the requested documents. See ibid.
29 - Ibid.,
para. 43.30 - The
Blaskic and Kordic Decisions cited were filed on 29
October 1997 and 9 September 1999, respectively. Rule
54 bis was adopted on 17 November 1999.
31 - Rule
54 bis(A)(ii).32 - Rule
54 bis(A)(iii).33 - Decision
on Application of Dragoljub Ojdanic for Binding Orders
Pursuant to Rule 54 bis, 23 March 2005, p. 6.
34 - See Written Response
and Notice of Objection of the Government of Canada
to General Ojdanic’s Second Application for
Orders to NATO and States for Production of Information,
27 September 2005, para. 9. 35 - See Response of the
Government of the United Kingdom to General Ojdanic’s
Second Application for Orders to NATO and States for
Production of Information, 27 September 2005, para.
8; Submission of the United States of America in advance
of the Hearing on General Ojdanic’s Second
Application for Orders to NATO and States for Production
of Information, 27 September 2005, p. 2. It should
be noted that although the United States claimed that
it had found no “exculpatory” material responsive to
paragraph (A), that paragraph does not seek only “exculpatory” communications. 36 - See Hearing, 4 October
2005, T. 108.
37 - See
ibid., T. 132.38 - Although
the Indictment related to events in 1998 and 1999,
the charges are confined to 1 January 1999 – 20 June
1999. 39 - Blaskic Subpoena Decision,
para. 65.
40 - Ibid.,
para. 67.41 - Written
Response and Notice of Objection of the Government
of Canada to General Ojdanic’s Second Application for
Orders to NATO and States for Production of Information,
27 September 2005, para. 27. 42 - See Submission of the
United States of America in advance of the Hearing
on General Ojdanic’s Second Application
for Orders to NATO and States for Production of Information,
27 September 2005, pp. 9 – 10. 43 - See
Prosecutor v. Simic, Case No. IT-95-9-PT, Decision
on Motion for Judicial Assistance to be provided by
SFOR and Others, 18 October 2000, in which this Trial
Chamber determined a Defence motion for the production
of documents and witnesses from the Stabilisation Force
(“SFOR”) or other military and security forces operating
in Bosnia and Herzegovina, in connection with the accused’s
arrest and transfer to the International Tribunal,
stating at paras. 46-49, 58 that “Article 29 should,
therefore, be read as conferring on the International
Tribunal a power to require an international organisation
or its competent organ such as SFOR to cooperate with
it in the achievement of its fundamental objective
of prosecuting persons responsible for serious violations
of international humanitarian law, by providing the
several modes of assistance set out therein.”
44 - See
ibid, paras. 62-63, and Disposition, p. 26.
45 - Blaskic Subpoena Decision,
para. 27 (emphasis added).
46 - Cf.
supra note 43. If, for example, an international organisation
is subject to Article 29 of the Statute and must therefore
cooperate with the Tribunal in the investigation and
prosecution of people suspected of violating international
humanitarian law, the Trial Chamber sees no reason
why such an organisaton should not be free to seek
the protections offered by Rules 54 bis(F), (G) and
(I).